The Validity of Israel’s Arguments Concerning Settlements in the Occupied Territories

0
36

Settlement building in the Occupied Territories has always been at the centre of Interim Agreements and Peace Processes, Settlements include not only housing but industrial sites and a huge infrastructure of roads, to connect them with Israel. Building began in the Occupied Territories soon after the 1967 war. The Alon Plan sought to distinguish between areas heavily populated by Palestinians, which would be returned to Jordan and strategic unpopulated areas, such as areas surrounding Jerusalem and in the Jordan Valley. [1]

Settlement was accelerated under the Drobles plan when Begin took power in 1977.

According to research done by Benevistis, former Mayor of Jerusalem, the Government planned to settle 100,000 there by 1986. The settlements were to become dormitories for Tel Aviv and Jerusalem and: “the intent is to create a dual society-¦the Arab towns are to become like ghettos-¦surrounded by large dormitory suburbs, settlements, military camps -” all served, linked and carved up by massive highways. Jewish areas will have free speech and elections, while the Arab ghettos will remain under military rule, or if you prefer, the civil administration.” [2]

The “Seven Stars Plan, superseded the Drobles plan in 1991, instigated by the then housing Minister Ariel Sharon, it called for new towns on the green line separating the West Bank and Israel.

In 1992, Rabin appeared to offer a change in Israel’s settlement policy when the Declaration of Principles was signed with the PLO in 1993. However, the declaration did not explicitly prohibit the establishment of new settlements. This is despite numerous Security Council Resolutions, concerning the illegality of settlements, for example Resolution 465, of 1986. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories. [3]

In the Oslo B accords of 1995, the Government made a promise to the US that settlements would only be constructed to meet “natural growth” of the population.

“Natural growth” was never defined, but no expansion would take place outside the Greater Jerusalem area in the Jordan Valley. However, the Greater Jerusalem area included areas beyond its limits. Natural growth has been taken to mean by Israel, both growth of the natural population and by migration. (The latter being economic migrants from the Soviet Union, who were refused settlement in the US and thereby diverted to Israel) In recent years, settlement growth has been dramatic, the number in the West Bank (excluding Jerusalem) between 1993 and the Al Aqsa Intifada in 2000, has increased by 54%. [4]

According to the Jewish Group Peace Now, which monitors settlement building, “When the Oslo agreements (1993) were signed there were 32,750 housing units in the settlements. Since the signing of the Oslo agreements 20,371 housing units had been constructed, representing an increase of 62% in settlement housing units by the year 2000, between 1994 and 1997, road paving was begun on 139.6 km of road and 159.2 was completed.” [5]

Israel maintains that the settlements are legal, setting out its reasons in a document, produced by the Foreign Ministry entitled the Legality of Settlements in International Law [6] The documents main reasons for claiming legality, are the historical context and the Interpretation of Humanitarian International Law. The historical context section claims that Article six of the British Mandate provided for a Jewish State in the Jewish People’s homeland. This is not open to dispute, however, once the Jewish Agency had accepted the recommendations of GA Resolution 181 and thereby agreed to the boundaries of the Jewish State, which were clearly stated in that Resolution, they agreed to become bound by it and the British Mandate as far as the Jews were concerned had expired. Indeed, this agreement is enshrined in the Declaration of Independence of the State of Israel, May 1948: ‘The State will be ready to co-operate with the organs and representatives of the United Nations in the implementation of the Resolution of the General Assembly of November 29, 1947.” In a letter of October 1949, Israel told the UN that it “asserts its title to the Territory over which its authority is actually recognised-¦although some of the invading Arab armies still stand on the soil of Palestine, Israelis not advancing any further territorial claims . But of the territory now constituting the State of Israel, there can be no cession. [7]

The argument then goes on to claim Ancient title; again, the argument holds no validity whatsoever in International Law. The International Court dismissed ancient title in the 17 November, 1953 Judgement in the Minquiers and Erechos Case, stating that too much emphasis had been placed on Medieval titles and had not taken into account the state of International law or its present tendencies towards territorial sovereignty. [8]

The argument concludes with claiming that the Jordanian Occupation Administration 1948 -” 67 declared the sale of land to Jews a capital offence, however, these rights could not be legally invalidated and such rights and titles remain valid to this day. Title to territory can be established by long standing possession, this is known as prescriptive title but it has to be “undisturbed, uninterrupted and unchallenged, as stated in the Chamizal Tract case [9], of the early twentieth century, Mexico had constantly challenged and questioned US control and the US claim was denied. Similarly, in the case of Botswana v Namibia,(1999) Namibia attempted to prove prescriptive title over the Kasikili/Sedudu Island, [10] Whilst, the court dismissed its attempts as not having enough precision and certainty, it did not question the concept of prescriptive title, therefore it can be assumed that the prescriptive title argument is still valid in International law. In the case of the Occupied Territories, the Israeli settlements have been constantly questioned and challenged, not only by Palestinians but also by, the International community, by other States, the UN Security Council and the General Assembly.

The second argument concerning International Law, relies on Israel’s interpretation of the Geneva Convention, according to the document: ” Geneva Convention IV, Article 49, was drafted immediately after the second world war and according to the Red Cross, was intended to protect the local community from displacement, endangering its separate existence as a race and with respect to forced population transfers in Czechoslovakia, Poland and Hungary” According to the paper, Article 49 of the Geneva Convention does not apply to the West Bank and Gaza and it is untenable to present Israeli settlements as a violation of this principle. The Red Cross definition of the application of the Geneva Convention appears to give Israel’s arguments some validity. However, in May 2001, the Head of the International Red Cross delegation to Israel and the Palestinian territories, Rene Kosirnik made the following statement:” The policy of settlement as such in humanitarian law is a war crime," [11] The statement was in line with the various General Assembly and Security Council Resolutions., which call upon Israel to scrupulously abide by the Geneva Convention, in relation to settlements..

Israel uses different arguments for reasons not to comply with the Geneva Convention, as a whole. In the case of Article 49, in relation to settlements, the Israeli Foreign Ministry claims: it is only applicable to the situation after the Second World War and is a unique situation. [12] In reality, Israel’s settlement policy is more severe because it aims at seizing areas of Palestinian land, to colonise Israel on a permanent basis and thereby take away the Palestinian right to self-determination.

The Israeli argument then goes on to state that the Geneva Convention cannot apply “regarding forced population transfer to occupied sovereign territory as prohibiting voluntary return,” [13] This argument can also be discounted. Industry relocating to the Territories receives tax incentives and settlers have mains services installed by the Government and have military protection. The following Press Release amplifies the point:

The Zionist regime on Monday said it would grant a number of Jewish settlements in the West Bank a permanent township status despite the fact that the outposts were established without government approval. The Israeli state-run radio said the decision would enable the erstwhile illegal settlements to obtain state funding and subsidies for a whole set of services from security to industrial infrastructure. [14]

In addition, the Tadic Case (Appeals Chamber) ICTY [15] clarified State Responsibility by Individual Groups, citing the United States Diplomatic and Consular Staff in Tehran case. Iranian Students had stormed the US Embassy and albeit they had not initially acted on behalf of the Iranian Government, Iran was declared responsible, for both failing to prevent the attack and also put an end to it. It then formally approved and endorsed the occupation of the Embassy and ordered the students not to put an end to the siege. The students were classed as de facto agents of the State. Draft Article 9 of the ILC Responsibility of States for Internationally Wrongful Acts (2001) reinforces the point, “The conduct of a person or group of persons shall be considered an act of a State under International Law if the person or group of persons is in fact exercising elements of the Governmental Authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.” In effect then those settlers which Israel claim have returned voluntarily of their own free will, are in fact de facto agents of the State because the State of Israel has condoned their actions and is therefore responsible and liable for their actions.

Moving away from the Geneva Convention, there is a carefully constructed statement, designed to indicate compliance with the Hague Regulations, which the Supreme Court accepts as Customary International law “Israeli settlements have been established only after an exhaustive investigation by the Supreme Court of Israel, designed to ensure that no communities are established on private land”.[16] It should be noted at this point that, the Supreme Court does not accept the Geneva Convention in relation to settlements and regards it as a general argument of principle which would place it in direct conflict with the Government policy, Kretzmer argues that for the Court to challenge Government policy regarding settlements may have led to the restriction of the Court’s jurisdiction in relating to petitions concerning the occupied territories. The Court therefore gives two reasons for not applying Art 49 of the Geneva Convention, firstly, it has no basis in customary International Law, this is despite paragraph 5 of Security Council Resolution 681, of 1990, which explicitly “Urges the Government of Israel to accept de jure applicability of the Fourth Geneva Convention of 1949, to all territories occupied by Israel since 1967and to abide scrupulously by the provisions of the said convention. and secondly, general arguments relating to legality of settlements are not justifiable. [17]

The exhaustive investigation by the Supreme Court appears to refer to its case law on settlements and private land between 1972 and 1979. (Rafiah Approach Case, Beth El Case, Mattitiyahu case and Elon Morah.)

The Supreme Court applied Article 46 of the Hague Regulations, which prohibits the confiscation of private property, In its defence the Government has always used Article 52, under the guise of security. “Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation.” (Art 52).

In three of the above cases the Court concluded that private land could be taken for Security Reasons, in Elon Morah, however, because the settlers put forward an ideological case, the Court declared that it was for political not security reasons.

Since Elon Morah, the court has not made any rulings concerning settlements, however this tool has been widely used since 1994 to authorise road building. In both the Taheeb Case [18] and the Wafa et al case [19],the Court declared that private lands could be seized in order to build by-pass roads, for security reasons . It must be emphasised at this point, that whilst the Supreme Court no longer rules on the sequestration of private land, the local magistrate Courts, within the Settlements still do, this comes under the guise of building permits.

Two recent cases illustrate this: The Magistrates Court in Hedera accused an old age pensioner of “unlicensed building” and imposed a fine and a house demolition order. The village planning map showed that the land belonged to the old man and that the house he lived in was a confined space. The Magistrates fined him 10.000 shekels or 13 months imprisonment in addition to 4000 shekels registration fee to the Court together with a guarantee of 10,000 shekels. Also a house demolition order had to be carried out if after 12 months a licence had not been granted. [20]

The home of Arabiya and Salim Shawamrah has been demolished four times. On September 28th, 2003 the Israeli military administration issued an order to destroy their home built on private land for a fifth time. The excuse being given was that there was no building permit. A series of refusals for the building permit had all given different reasons: – it was in an agricultural zone, the land was too steep and it was too near an Israeli highway. At the time of writing Israeli vehicles had surrounded the property and it was expected to be destroyed early in the morning. What is particularly poignant in this case, is that the house was to be dedicated to Rachel Corrie, the American peace volunteer who was crushed to death in Rafah, Gaza as she tried to prevent an Israeli bulldozer from demolishing a Palestinian home. [21]

Furthermore, the Government has circumvented the private land argument by classifying it as “State Land” The Israeli Government uses the Order Regarding Government Property (Judea and Samaria) No 59, 5727-1967, to authorise the property of an enemy state being taken. This has been used to seize land in the name of the Jordanian Government. They have also used the old Ottoman Land Law registration system to claim land as State land. Many Palestinians avoided registering in that period, so they did not have to pay taxes to Turkey, or serve in the Turkish Army. It is therefore nigh impossible to prove that they owned the land. An appeals committee is in place, but the onus of proof is on the claimant and the costs are more than any Palestinian could afford.

Absentee property is given to the Custodian, it can be claimed by those who return, however, Israel has a policy of not letting Palestinians return to the West Bank and when they have returned they have to face a Military Committee, furthermore, even if they did have proof , the seizure will be legitimate if the Custodian acted in good faith, a matter difficult to disprove [22] Eric Monse, of Jews Against the Occupation, offers the following account, following a three week visit to the territories: Israel implements an ancient Turkish law that if someone isn’t on their land for more than three years, the land is confiscated to the government. They cut off the land and decide it is a closed military zone and, after three years, they confiscate the land to build settlements on it. [23]

Expropriation for Public needs, is another method of seizing land, the law has its roots in an old Jordanian law, which has been amended twice by Israel. As the old Jordanian law states that the land must be for public use, it has normally not been used for settlement building, but for roads. However, there is a contradiction in policy here, as the Israeli Government does not recognize Jordanian sovereignty , as a reason to reject Article II of the Geneva Convention. The Court declared in the Tabib case, that roads are neutral installations. [24]

Land that is classed as State land, therefore, is very often private land under another name. Albeit, so called State land, is not classified under Art 46, of the Hague Regulations, Article 55 of the Hague regulations states: The occupying State shall be regarded as an administrator and usufactory of public buildings, real estate forests and agricultural estates belonging to the hostile state and situated in the occupied country. It must safeguard the capital of these properties and administer them with the rules of usufruct. The occupier, is therefore forbidden to change the character and nature of state land (government properties) except for security needs or for the benefit of the local population Settlements change the character of state lands and are therefore are in violation of Hague Art 55.

Even without the application of the Geneva Convention, the settlements would appear to be in violation of the Hague Rules, evermore, as the Rules are quite clear that the measures are temporary and that the public lands must be safeguarded., In contrast, there is consistent evidence that the Israeli policy is political and of a permanent nature. For example, the statement made by Ehud Barak, on a visit to the Maale Admin settlement in 1999: “Every house you have built here is a part of Israel. Forever. Period. The new Government will continue to strengthen the state of Israel, its hold over the Land of Israel and we will continue to develop and strengthen Ma’aleh Adumim.” [25]

It is quite apparent that the building of settlements is a politically motivated act. It is entangled with the Security Policy, which is used to validate the sequestration of land from Palestinians, to build settlements within Palestinian Territories and thereby expand the State of Israel, in violation of International Law.

The final argument put forward by the Israeli Foreign Ministry in Israeli Settlements in International Law, Legal Position Paper, 2001 [26], concerns settlements as regards to agreements which have been reached with the Palestinians.

“The agreements reached between Israel and the Palestinians contain no prohibition whatsoever on the building or expansion of settlements. On the contrary, it is specifically provided that the issue of settlements is reserved for permanent status negotiations, which are to take place in the concluding stage of the peace talks.”

However, Israel still maintains control over these areas, This has been confirmed by Israeli Military Incursions such as that in the town of Beit Jala in 2001, the Palestinian police force in these areas is civilian and Israel still has overall military presence. The Geneva Convention still applies, Article 47 provides that “Protected persons who are in Occupied Territory shall not be deprived in any cases or in any manner whatsoever of the benefits of the present convention by any change introduced, as a result of the occupation of the territory , into the institutions of Government of the said territory nor by any agreement concluded between the authorities of the occupied territories and the occupying power, nor by any annexation of the latter of the whole or part of the occupied Territory”. [27] This confirms that the Convention applies in all cases even if there were agreements between the Palestinian Authorities and Israel.

The Israeli position on settlements is untenable. The Legal Position Paper offered by the Israeli Foreign Ministry, offers no legally acceptable arguments for the building of settlements whatsoever under International Law.

Notes:

[1]. Kretzmer D (2002) The Occupation of Justice, State University of New York Press, page 76

[2]. Chomsky N (1999), Fateful Triangle, Pluto Press page 107

[3]. Security Council Resolution/465, March 1980

[4]. Land Grab, Israel’s Settlement Policy in the West Bank, Comprehensive Report, (May 2002) p12 http://www.btselem.org/ Cited Oct 2, 2003

[5]. Central Bureau of Statistics Quotd by Peace Now Facts On The Grround Since the Oslo Agreements www.peace-now org

[6]. Israeli Foreign Ministry The Legality of Settlements in International Law http://www.israel-mfa.gov.il/mfa/home.asp . Cited October 3, 2003

[7]. Quigley J (1990.) Palestine and Israel, A Challenge to Justice, , Duke University Press, Page 92

[8]. ICJ Minquiers and Erechos Case Judgment 17 November 1953 Case Summary http://www.icj-cij.org/icjwww/idecisions/isummaries/ifuksummary531117.htm

[9]. Quigley J (1990) Palestine and Israel, A Challenge to Justice, , Duke University Press, page 92

[10]. ICJ Botswana v Namibia Judgement 13, December, 1999 paras 94-7

[11]. Craft D(2003) Red Cross Takes Issue With Israel The Associated Press Available from: http://www.jordanembassyus.org/05182001003.htm (Cited 5 October, 2003)

[12]. Ibid 6

[13]. Ibid 6

[14]. Occupied Jerusalem 27 Oct 2003 (IAP News) http://www.iap.org

[15]. ICTY Tadic Appeals Chamber Judgement 15 July, 1999 (paras 130-133)

[16]. Ibid 6

[17]. Security Council Resolution 681, 1990

[18]. Kretzmer D( 2002) The Occupation of Justice, State University of New York Press, page 98

[19]. HCJ 2717/96, Wafa et al v Minister of Defense et al., Piskei Din 50 (2), 848. quoted in Lein Y. (2002) Land Grab Israeli Settlement Policy in the West Bank B’Tselem.org

[20]. The Arab Association for Human Rights, Weekly Press review, 14-21 October, 2003

[21]. Al-Jazeera Report, (28, Oct 2003)www://English.aljazeera.net/Articles/News/ArabWorld

[22]. Kretzemer D,( 2002) The Occupation of Justice, State University of New York Press, pages 90 to 92

[23]. Monse E, Jews against the Occupation http://www.dissidentvoice.org/Articles8/Monse_Apartheid-Wall.htm Cited Nov, 1, 2003

[24]. Land Grab, Israel’s Settlement Policy in the West Bank, Comprehensive Report, May 2002 p44 http://www.btselem.org/ Cited 25 October 2003

[25]. Feltner E (1999) Quoted in La Monde Diplomatique http://mondediplo.com/1999/11/08israel

[26]. Ibid 6

[27]. Geneva Convention IV Article 47

LEAVE A REPLY

Please enter your comment!
Please enter your name here